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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, April 5, 2017

Sexual harassment victim is awarded $25,000 in damages

Employment discrimination cases are not always resolved in federal court. Some plaintiffs file complaints in the State Division of Human Rights and/or the Equal Employment Opportunity Commission, which can investigate and settle the complaints. The SDHR can hold an evidentiary hearing to get to the bottom of things. After someone wins or loses, the case then proceeds to state court.

The case is In the Matter of AMG Managing Partners v. New York State Division of Human Rights, an Appellate Division case issued on March 31. This case went to an SDHR hearing. The SDHR found in favor of the complainant, who alleged she was sexually harassed in violation of the state human rights law. The SDHR awarded her $65,000 in damages for pain and suffering, It also fined the individual defendants $15,000 and ordered him to attend an unlawful discrimination training seminar. The plaintiff also won $5,720 in lost wages arising from her forced resignation, what lawyers call "constructive discharge."

The Fourth Department upholds the finding that the complainant was sexually harassed. Unfortunately, the decision tells us nothing about what actually happened in the workplace, which is one reason why we have few state court decisions that fully outline what harassment is actionable under state law. But we do know that the SDHR awarded the victim $65,000 for pain and suffering. The Fourth Department thinks that amount is too high, and it reduces the award to $25,000. From my experience, the reduced amount is more in line with SDHR practices. The agency does not award the high damages that you'll see in federal court with a jury.

The appellate court notes that plaintiff was not required to corroborate her pain and suffering claims. "In challenging the award for mental anguish and humiliation, petitioners rely heavily on the fact that complainant failed to submit documentary evidence to corroborate her testimony that she sought counseling 33 times in the four months following her constructive discharge. Contrary to petitioners’ contention, such testimony does not require corroboration inasmuch as proof of mental anguish 'may be established through the testimony of the complainant alone.' This is a common defense argument, that the pain and suffering is subjective and cannot be objectively measured. But this case reminds us that plaintiff's testimony on this issue is enough.

What makes this case interesting is that the employer challenged the sexual harassment findings by arguing that the plaintiff was not really harassed because she "may have used sexually inappropriate language or engaged in sexually inappropriate conduct with a longtime person friend who worked in the same office." In other words, the plaintiff was not subjectively offended by the harassment. This defense is not going to cut it these days. People are allowed to have a private life. The Fourth Department cites a Fourth Circuit case from 1987, Swentek v. USAir, Inc., 830 F.2d 552 (4th Cir. 1987), for the proposition that a plaintiff's "use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment." There must be few cases on this issue in our jurisdiction, though the Fourth Department also cites a case from the Southern District of New York, Danna v. NY Telephone Co., 752 F. Supp. 594 (SDNY 1991), for this proposition.